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Open container violation in california 23223 (b)

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jauyeung

Junior Member
I was in the parking lot of a bar in downtown Fullerton, CA and I was looking for my purse to get ready to go out for my birthday and some of my friends were drinking in the car. All of a sudden a cop comes and all of my friends run out and the cop ended up giving the driver and me a ticket for having an open container. I told him I was just looking for my purse, but he either didn't hear me or just decided to ignore what i said. Does it matter if you were just a passenger and didn't engage in the activity? Can I fight this? It ruined my birthday.
Also does this count as a moving or non-moving violation?
 


I_Got_Banned

Senior Member
I was in the parking lot of a bar in downtown Fullerton, CA and I was looking for my purse to get ready to go out for my birthday and some of my friends were drinking in the car. All of a sudden a cop comes and all of my friends run out and the cop ended up giving the driver and me a ticket for having an open container. I told him I was just looking for my purse, but he either didn't hear me or just decided to ignore what i said. Does it matter if you were just a passenger and didn't engage in the activity? Can I fight this? It ruined my birthday.
Also does this count as a moving or non-moving violation?
23223 (b) No passenger shall have in his or her possession, while in a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle containing any alcoholic beverage that has been opened or a seal broken, or the contents of which have been partially removed.​

Where were you in relation to the "open container"? Was it "within reach"?
 

CdwJava

Senior Member
You can fight anything you want. But, possession is about dominion and control, not ownership. Now, if these are really good friends, maybe they will be willing to come forward and admit that they were drinking the beer but fled when the officer showed up.

Did you tell the officer who they were? Did he see them run from the car? Was the alcohol near where you and/or your purse were?

I have to tell you that the police and the court hears stories like this all the time. Chances are you're not going to prevail on that argument, but if it's all you got, you may have little to lose by making it ... though having your friends show up at court to confess would be helpful.
 

jauyeung

Junior Member
I'm not sure if the officer saw anyone run from the car, but I didn't run because I knew I didn't do anything wrong and didn't think I would get a ticket. I didn't want to argue with the officer, but I did tell him that I was just looking for my purse. My purse turned out to be on the floor of the passenger seat. Everyone was out of the car by the time the officer got off his motorcycle. So I feel like he just caught whoever was still around the car. He told us to get the alcohol in the car and I found it in the backseat which was no where near my purse and it was where the people in the backseat had left it. I am not sure which friends were drinking exactly because I was frantically looking for my purse for awhile thinking I had forgotten to bring it and did not pay attention to who was doing what.

What will the consequences be if I lose the case?

23223 (b) No passenger shall have in his or her possession, while in a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle containing any alcoholic beverage that has been opened or a seal broken, or the contents of which have been partially removed.

Also, what does "highway or on lands" refer to. Does being in a parking lot refer to one of those?

Thank you.
 

CdwJava

Senior Member
The fine and fees should total about $331 if convicted.

But, you are correct, a PRIVATE parking lot (one not owned or operated by the city) is not a highway pursuant to CVC 360 and the section should not apply. However, if he followed the car into the lot from the street, he has you.
 

jauyeung

Junior Member
My ticket is $356, so will it be an additional $351 of court fees if I lose the case? Also will points be put on my record if I lose or win and will my insurance go up?
Sorry if I'm asking technical questions I just want to understand what I am going through. Thank you very much.
 

CdwJava

Senior Member
My ticket is $356, so will it be an additional $351 of court fees if I lose the case? Also will points be put on my record if I lose or win and will my insurance go up?
Sorry if I'm asking technical questions I just want to understand what I am going through. Thank you very much.
No, the state recommended fine and fee schedule indicates an estimated $331 for the total amount. Your $356 is about right as most larger jurisdictions have additional or higher fees so are slightly hire than the state recommendations. You won't have to pay double that amount should you lose. Whether this conviction on your driving record will effect your insurance is between you and your insurer.

There should be no points attached to this offense according to the fine and fee schedule.

But, you have a good point on the parking lot issue and you might consider researching that further and building a defense around that. If, however, the officer likely observed you guys pulling in to the lot, then it's not going to fly. If you guys had been there for a while and the alcohol was opened after you had all been parked for a bit, then it might be worth the effort.
 

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